ISCR Case No. 26-00774

______________ ______________ DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS _____________________________________

In the matter of: )

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) ISCR Case No. 26-00774

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Applicant for Security Clearance ) _____________________________________ ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro Se 09/22/2026 Decision CEFOLA, Richard A. Administrative Judge: Applicant mitigated the security concerns under Guideline H (Drug Involvement and Substance Misuse). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a Questionnaire for National Security Positions on January 14, 2026 (Questionnaire). On May 27, 2026, the Defense Counterintelligence and Security Agency (DCSA) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under and Guideline H. The action was taken under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense (DoD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within DoD after June 8, 2017.

On or about May 4, 2026, Applicant responded to the SOR in writing (Answer) and requested that the case be decided on the written record in lieu of a hearing. In his Answer, Applicant admitted the allegation in SOR¶ 1.a and denied the allegation in SOR¶ 1.b. In addition, he included Applicant Exhibit (AE) A (copy of the SOR); AE B (state medical cannabis card valid June 2024 – June 2025); and AE C (state medical cannabis card valid July 2025 – June 2027). On July 29, 2026, Department Counsel submitted the Government’s written case in a File of Relevant Material (FORM). A complete copy of the FORM, consisting of Government Exhibits (GE) 1 to 5, and the Government’s arguments in support of the SOR, was received by the Applicant on July 31, 2026. Applicant timely submitted an additional statement in response to the FORM on July 31, 2026 (Response). The case was assigned to me on September 15, 2026, and all exhibits were admitted without objection. Findings of Fact Applicant is 51 years old, has been married since 2005, and has two children. He earned a master’s degree in 2015. Applicant has been sponsored by a defense contractor since November 2024 with employment there contingent upon obtaining a security clearance. He previously held a security clearance during his service in the U.S. Army from 1998 to 2021, from which he honorably retired as a major (O-4). He deployed to several combat tours, including two in Iraq. During his final tour of duty, he served as the Executive Officer (XO) to Commander, Combined Arms Center – Training (CAC-T). (GE 3 at 5, 11, 14-26, 30, 34, 54-55; GE 5 at 2) SOR Paragraph 1 (Guideline H: Drug Involvement and Substance Misuse) The Government alleged that Applicant is ineligible for a security clearance due to his use of marijuana. The following facts pertain: 1.a. Use of marijuana from June 2024 – April 2026: Applicant admitted to the conduct alleged in the SOR. As Applicant explained to a defense investigator in March 2026, he was legally issued a state medical marijuana card for pain management in June 2024. He then used marijuana gummies and/or marijuana oil about once a week to calm his pain and help him sleep. This occurred after his retirement from the Army and before any employment with a defense contractor. (Answer; Response; AE B; AE C; GE 5 at 2) 1.b. Intent to continue use of marijuana: Applicant denied this allegation. In April 2026, Applicant indicated in a response to interrogatories that he intended to continue using marijuana for pain relief in the future, but also noted he had recently been referred to a pain management clinic to find additional pain management methods that might help. He also told the defense investigator in March 2026 he planned to seek alternative pain management remedies if required for a security clearance. In his Answer, Applicant denied any plan to use marijuana in the future, noting its incompatibility with security clearance eligibility. And in his Response, he specifically 2

clarified his interrogatory answer to note that when filling out the interrogatories, he was in fact still using marijuana for pain management. Since that time, however, he has ceased using the drug, is actively pursuing alternatives for pain management, and has unequivocally pledged “to abstain in the future especially while pursuing or holding a security clearance.” He acknowledged the apparent conflict in his answers but denied changing his response “for convenience.” He subsequently replied with a an answer discussing the full context of his use and his unconditional commitment to abstain in the future. (Answer; Response; GE 4 at 9) Whole Person and Mitigating Evidence Applicant’s Response placed his marijuana use in context. He explained it was prescribed by a physician, was solely used for pain relief (as opposed to recreational), and that once he more fully understood the security clearance issues involved, he ceased its use entirely. He reiterated his 23 years of honorable service in the U.S. Army, including combat deployments, and having previously held a top secret clearance. Policies When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of applicable guidelines in the context of a number of variables known as the whole-person concept. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of national security is the paramount consideration. AG ¶ 2(b) requires, “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14, requires the Government to present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, “The applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the 3

ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants national security eligibility. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified or sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “Any determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.) Analysis SOR Paragraph 1 (Guideline H: Drug Involvement and Substance Misuse) The security concerns relating to the guideline for drug involvement and substance misuse are set out in AG ¶ 24, which reads as follows: The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above. The Applicant admits use of marijuana. Therefore, the facts of this case establish the following potentially disqualifying conditions set forth in AG ¶ 25 to the allegations under Guideline H: (a) any substance misuse (see above definition); (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and 4

(g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse. The burden therefore shifts to Applicant to mitigate security concerns under Guideline H. The guideline includes the following conditions in AG ¶ 26 that could potentially mitigate security concerns arising from Applicant’s drug use: (a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and (b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome the problem, and has established a pattern of abstinence, including, but not limited to: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; and (3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility. Applicant is a retired combat veteran who used marijuana for pain management in accordance with state law. However, he is now actively seeking alternative pain relief options and has made an unconditional commitment of abstention. Additionally, he convincingly explained the apparent conflict between his initial comments on potential future use and his subsequent pledge of abstention, placing his answers in context. The evidence therefore supports the premise that Applicant’s use of marijuana happened under such circumstances that it is unlikely to recur or does not cast doubt on his current reliability, trustworthiness, or good judgment. Moreover, he clearly and convincingly committed to discontinue such misuse in both his signed Answer and Response. As such, AG ¶¶ 26(a) and (b) apply. SOR ¶ 1 is found for Applicant. Whole-Person Concept Applying the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for national security eligibility by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable 5

participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant national security eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the above whole-person factors and the potentially disqualifying and mitigating conditions in light of all pertinent facts and circumstances surrounding this case. I have given the appropriate weight to Applicant’s statements and his significant military service. An exacting review of the record evidence leaves me without questions or doubts as to Applicant’s suitability for national security eligibility and a security clearance. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: FOR APPLICANT Subparagraphs 1.a – 1.b: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, I conclude that it is clearly consistent with the interests of national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. RICHARD A. CEFOLA Administrative Judge 6